Citation Nr: 21009001 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 19-37 945 DATE: February 18, 2021 ORDER The Board having determined that new and material evidence has been received, reopening of the claim of entitlement to service connection for right knee strain is granted. The Board having determined that new and material evidence has been received, reopening of the claim of entitlement to service connection for left knee strain is granted. Entitlement to service connection for a right knee disability is granted. REMANDED Entitlement to service connection for a left knee disability is remanded. FINDINGS OF FACT 1. An unappealed December 2015 denied service connection for bilateral knee strain secondary to service-connected disability. 2. The evidence associated with the claims file subsequent to the December 2015 rating decision is not cumulative or redundant, and raises a reasonable possibility of substantiating the claims of entitlement to service connection for right and left knee disabilities. 3. Resolving all reasonable doubt in the Veteran’s favor, a right knee disability is etiologically related to active duty. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the claim of entitlement to service connection for a right knee disability. 38 U.S.C. § 5108 (2018); 38 C.F.R. § 3.156 (2019). 2. New and material evidence has been received to reopen the claim of entitlement to service connection for a left knee disability. 38 U.S.C. § 5108 (2018); 38 C.F.R. § 3.156 (2019). 3. The criteria for service connection for a right knee disability have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 5107 (2018); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Air Force from March 1952 to March 1974. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an August 2018 rating decision by a Department of Veterans Affairs (VA) Regional Office. The Veteran testified at a hearing before the undersigned Veterans Law Judge in November 2020, and transcript is of record. At the hearing, the undersigned granted the Veteran’s request to hold the record open for 60 days. Claims to Reopen The Veteran is seeking service connection for the previously-denied claims of entitlement to service connection for right and left knee disabilities. Based on the additional evidence added to the record since the previous final denial of the Veteran’s claims, the Board finds that new and material evidence has been added to the record. Since the last final denial in December 2015, VA obtained a medical opinion regarding the etiology of the claimed right and left knee disabilities. Additionally, the Veteran provided sworn testimony regarding the onset and continuity of his claimed disabilities in November 2020. This evidence is new and material as it is not cumulative or redundant, and it raises a reasonable possibility of substantiating the claims. Accordingly, reopening of the claims of entitlement to service connection for right and left knee disabilities is warranted. Service Connection – Right knee Disability The Veteran asserts that his current right knee disability is related to multiple in-service right knee injuries. Specifically, he stated that he injured his knee while playing football and in a car accident, that the injuries were not properly treated, and that he continued to experience intermittent pain since service. See November 2020 Board Hearing Transcript. Service treatment records (STRs) reflect that the Veteran sustained a slight sprain of the right knee while playing football in September 1952. He was seen for follow-up in November 1952. A March 1956 report of examination noted the history of injured knee, and the Veteran reported occasional pain. In May 1956, the Veteran was involved in an automobile accident in which he injured his right knee. An STR noted that a civilian bone specialist recommended that the Veteran have an operation for cartilage immediately. Since then, the Veteran had recurrent pain down the medial aspect of the right leg on walking. The examiner noted that the Veteran previously injured his right knee while playing football overseas. Physical examination revealed contusion and laceration scars over the right knee joint area. An x-ray was negative for bone or joint pathology. On November 1973 separation examination, history of knee injury was noted, but clinical examination of the lower extremities was normal. Post-service, the Veteran submitted his original claim for a right knee injury in July 1974. At a September 1974 VA examination, the examiner noted that the Veteran had been unemployed for five months since his retirement from the Air Force. The Veteran complained of right knee pain, slipping, and giving way. On physical examination, a drawer test was positive. The examiner noted that the distal segment of the right knee moved forward a half inch. Moderate crepitus was also noted. The examiner diagnosed arthralgia right knee. An October 1974 rating decision denied entitlement to service connection for a right knee injury, and the Veteran did not appeal. In August 1980, the Veteran submitted a claim to reopen previously denied claims for service connection. At an October 1980 VA general medical examination, the Veteran complained of occasional warmth, swelling, and mild pain in the right knee. However, there is no indication that the right knee was physically examined. An October 1982 rating decision denied entitlement to service connection for a right knee injury. The Veteran perfected an appeal, which was finally denied by an April 1985 Board decision. An April 2001 VA primary care note indicated that the Veteran presented to establish care at the VA outpatient clinic. The Veteran reported that he had knee pain aggravated by long standing and walking and that after taking glucosamine/chondroitin, he had some improvement. He reported having an x-ray done recently and was still waiting for the results. A September 2007 VA primary care note indicated that the Veteran had chronic bilateral knee pain. An April 2010 VA primary care note indicated that the Veteran had degenerative joint disease of the knees. A July 2010 VA x-ray indicated that the Veteran had osteoarthritis. The examining physician instructed her assistant to inform the Veteran that he had moderate to severe arthritis in both knees. In April 2015, the Veteran submitted a claim for bilateral knees secondary to back condition. On December 2015 VA knee examination, the examiner diagnosed knee strain but did not note the diagnosis of arthritis in the VA treatment records. Range of motion testing showed extremely limited flexion. The Veteran experienced pain in both flexion and extension. The examiner opined that the Veteran’s knee disability was less likely than not related to the service-connected cervical spine (neck) disability, reasoning that there is no medical pathophysiologic relationship between the cervical spine and knees. A December 2015 rating decision denied entitlement to service connection for bilateral knee strain secondary to the service-connected cervical spine disability, and the Veteran did not appeal. In March 2018, the Veteran submitted the current claim for bilateral knees. In an October 2019 VA opinion, an examiner opined that the Veteran’s knee arthritis is less likely as not due to his service. The examiner stated that there was no indication that the Veteran had any chronic knee symptoms in his review of the STRs. The examiner cited the 1956 periodic examination and 1973 separation examination, which were negative for a current knee disability, as rationale for his opinion. The examiner also noted a lack of complaints or diagnosis of the knee in Air Force Base records from 1975 to 1981. Based on the foregoing, the Board finds that service connection for a right knee disability, diagnosed as osteoarthritis, is warranted. As noted above, the Veteran’s reports of knee injuries in service are verified by the STRs. Although the Veteran was noted to be normal on separation, he filed a claim for a right knee disability within months of separation from service. The September 1974 VA examination demonstrated abnormal findings of the right knee. The Veteran continued to complain about the right knee, as evidenced by his persistence in filing claims throughout the 40 plus years since service. Although the October 2019 VA examiner rendered a negative etiological opinion, the Board notes that the examiner failed to consider the Veteran’s lay reports of intermittent pain since the in-service knee injuries, as well as the September 1974 examination results. Consequently, the examination report has little probative value. Accordingly, after resolving any reasonable doubt in favor of the Veteran, the claim of service connection for a right knee disability is granted. 38 U.S.C. § 5107 (b) (2018); 38 C.F.R. § 3.102 (2019). REASONS FOR REMAND Service Connection – Left Knee Disability The Veteran asserts that he has a left knee disability related to his participation in various sports during service. VA treatment records reflect complaints of left knee pain since April 2001 and a current diagnosis of left knee osteoarthritis. The Board acknowledges that the Veteran was provided a VA opinion in connection with his claim in October 2019, but as noted above the opinion is inadequate. Accordingly, the Board finds that the Veteran should be afforded a VA examination regarding the claim for service connection for a left knee disability. The matter is REMANDED for the following action: 1. The Veteran should be afforded an examination to determine the nature and etiology of any left knee disorder, including any arthritis, that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file. The VA examiner should identify any current left knee disability and provide an opinion as to whether it is as least as likely as not (50 percent probability or more) that any identified left knee disability is related to any event, illness, or injury during service. The examiner should also provide an opinion as to whether the left knee disability is at least as likely as not (50 percent probability or more) caused or aggravated by the service-connected right knee disability. The provider is advised that the Veteran is competent to report symptoms, treatment, and diagnoses and that his reports must be taken into account, along with the other evidence of record, in formulating the requested opinions. A complete rationale, with specific reference to the relevant evidence of record, should accompany each opinion provided. 2. After completing the above, readjudicate the claim. If the claim remains denied, the Veteran should be furnished with a supplemental statement of the case and afforded a reasonable opportunity for response. Kristin Haddock Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Roya Bahrami, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.